Today’s blog is written by Angela Casey, a lawyer at de VRIES LITIGATION
In this case, Blanca Robinson first made a will in Spain. The Spanish will stated that it was to dispose of her European assets and made it clear that she had executed another will in Canada to deal with her Canadian assets. Several years after executing the Spanish will, Blanca executed a new will in Canada containing a standard revocation clause. By its terms, therefore, the Canadian will revoked the earlier Spanish will.
The applicant led evidence that the testator did not intend to revoke the Spanish will. He swore an affidavit containing evidence of Blanca’s discussions with him about how she planned to dispose of her estate as well as evidence about the circumstances of Blanca’s life at the time that she made her will. The applicant asked the Court to rectify the Canadian will to reflect Blanca’s intention that the two wills stand together. The application judge dismissed the application, stating that “if a testator’s intent could be determined simply by third party affidavits, I would find…that the testator never intended to revoke the Spanish Will.”
The Court of Appeal found it unnecessary to delve into the issues raised by the appeal – the scope of the Court’s interpretation function, the deletion power, and the law of equitable rectification – because of its finding that there was insufficient admissible evidence to prove that Blanca did not intend to revoke the Spanish Will.
The decision acknowledged the trend in Canadian jurisprudence towards admitting extrinsic evidence of the testator’s circumstances and those surrounding the making of the will. However, the Court found that it was not open to the application judge to determine Blanca’s intention based on evidence from third parties about her testamentary intentions.
The Court of Appeal reasoned that there are both credibility and reliability issues triggered by third party intention evidence. For example, parties alleging to be disappointed beneficiaries could lie about what the deceased promised them “without fear of contradiction from the deceased”. Evidence of intention from anyone other than the solicitor who drafted the will is unreliable because, among other things, “testators are not obliged to write their wills to accord with the sincere or mendacious assurances they have given.”
Thanks for reading,
 2011 ONCA 493